Imagine you live in a country that is putatively a democracy. It has three branches of government and is subdivided into 50 parcels known as states. The states pattern their systems after the national one.
The branches are constitutionally coequal, but one of them, the judicial branch, can overrule both of the others. In theory, it does so only for legal or constitutional reasons, but politics have been known to intrude. In one of those subdivisions, though, that powerful branch has been held in the sway of party bosses, ensuring that only the men and women who please the party can take a seat on the bench.
Question: Is that still a democracy?
Not in New York, it’s not. In this subdivision, voters have virtually no influence over the selection of judges. Leaders of the local Democratic and Republican parties decide between them who they want on the bench, often demand cash from the hopefuls, then crassly and openly agree to endorse the other party’s candidates. It’s a cynical ploy that any competent judge would invalidate as illegal collusion in business. In the business of New York politics, though, it’s just the way it is.
Yes, voters ultimately cast their ballots for judges, but the political manipulation of the system renders their efforts as little more than formality. The decision has been made for them.
That corroded machine is cranking up again in Erie County. Later this month, the two major party bosses – Jeremy Zellner for the Democrats, Nicholas Langworthy for the Republicans – will sit down and decide which candidates voters will be allowed to approve for State Supreme Court judgeships here. Indeed, the die seems to be already cast, for Erie County District Attorney Frank A. Sedita III, a Democrat, and divorce attorney Emilio Colaiacovo, a Republican who has handled many of the party’s election law matters. Are the voters pleased? It doesn’t really matter.
Even more appalling, if that’s possible, are the financial demands made of candidates seeking the party’s blessing. As News reporter Robert J. McCarthy noted in a story earlier this year, those hopeful of a judgeship were shaken down for “donations” of $4,000 each. The money was to be used to produce campaign literature directed at voters of the Independence Party, who overwhelmingly side with Republican-backed candidates.
What is more, even candidates who weren’t endorsed, and who had zero chance of being endorsed, were pressured to pay up. Without that tribute, those candidates might find themselves forgotten should they decide once again to seek the blessing of the bosses.
New York is the only state in the country the operates under this corrupt system. In a “stop-me-before-I-kill-again” kind of argument, party leaders dutifully say they do not like the system, but are bound by it. And so it continues, year after year, under its own festering momentum.
There is a fair question to be asked of whether judges should be elected at all. Yes, democracy is typically best served by general elections, but consider: Americans routinely elect sheriffs but not police chiefs. By vesting hiring authority in other elected and accountable officials, the job becomes finding the best-qualified, available candidate rather than selecting the most popular candidate with the best ability to raise money.
A similar system is already in place in about 24 states. In an interesting mix of processes, an expert nominating panel will recommend candidates to, say, the governor. The governor then chooses from that list and after some period of years, the sitting judge is subject to an up-or-down general election. If re-elected, the judge can then serve another term; if not, a replacement will be appointed in the same way.
It’s not perfect, but compared to what happens now in New York, its judicial nirvana. It drains the stink of politics from the system, while leaving voters a say and doing a better job of ensuring that only the best candidates sit behind the bench.
New York could adopt that kind of system, if it wanted to. And therein lies the rub.